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Zuniga v. Trueaccord

United States District Court, D. New Mexico

December 4, 2019

MARISA ZUNIGA, on behalf of herself and all others similarly situated, Plaintiff,
v.
TRUEACCORD, Defendant.

          ORDER DENYING MOTION TO COMPEL

          KEVIN R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER comes before the Court on Defendant's motion to compel discovery responses. (Doc. 43). The parties reached an impasse over whether Plaintiff must produce to Defendant her retainer agreement with counsel. The Court has considered the parties' submissions along with the record available. Having done so, the Court denies Defendant's motion.

         I. Background.

         The original deadline for the completion of discovery was April 16, 2019. (Doc. 13). On March 15, 2019, Defendant propounded discovery requests to Plaintiff. Included in the discovery requests was Request for Production No. 15 (“RFP 15”), which sought “… documents or other tangible items which refer to, concern, relate to, or reflect on Plaintiff's adequacy to serve as representative of other persons alleged to be similarly situated in this litigation.” (Doc. 23). Plaintiff responded to RFP 15 without objection by response served May 12, 2019, indicating she was not in possession of any responsive documents. (Doc. 23-1; Doc. 25).

         The discovery deadline was extended to May 15, 2019 by order filed April 16, 2019 “…to give the parties adequate time to complete the deposition of Plaintiff Marisa Zuniga given that Ms. Zuniga is not able to appear for her deposition previously scheduled on April 17, 2019. This extension will not affect the remaining pre-trial deadlines.” (Doc. 19). Plaintiff's deposition was taken by Defendant on May 14, 2019. During the deposition, counsel for Defendant asked Plaintiff to provide details of the reason why she hired Plaintiff's counsel. (Doc. 23). Defendant argues that the purpose of the aforementioned line of questions was to elicit facts relevant to Plaintiff's adequacy with respect to representation of the proposed class. (Id.); see also Fed. R. Civ. P. 23(a)(4). During Plaintiff's deposition (Doc. 23-4), in connection with Defense counsel's verbal request that Plaintiff's counsel produce the retainer agreement between Plaintiff and Plaintiff's counsel, counsel had the following exchange:

Ms. Anderson: That's fine. Do you want to just produce the agreement?
Mr. Zelman: There's no formal demand at this time.
Ms. Anderson: I'm making demand now.
Mr. Zelman: Oh. We'll take 30 days to respond to that under FRCP 34, and you'll have our objections or our responses.
Ms. Anderson: Okay. And I'll raise that issue with respect to the other objections that you had. We probably will end up filing a motion to compel, and then I'll just include that in there for the convenience of the court, so he can maybe give us a ruling ahead of time.
Mr. Zelman: Certainly. And just to be clarify, we are going to ask for a formal written demand as a follow-up.
Ms. Anderson: That's fine. So let me back up. You said that you wanted to help with respect to my terminology - Mr. Zelman: Yeah, we don't call them retention agreements. We have - it's a retainer agreement.

         The deadline for filing motions related to discovery was May 30, 2019. On May 30, 2019, Defendant filed its Motion to Compel Discovery Responses (referred to as “First Motion to Compel”). (Doc. 23). In the First Motion to Compel, regarding RFP 15 Defendant stated that RFP 15 “asked Plaintiff to produce any and all documents or other tangible items which refer to, concern, relate to, or reflect on Plaintiff's adequacy to serve as representative of other persons alleged to be similarly situated in this litigation.” (Id.). Defendant then goes on in the First Motion to Compel to mention that after questioning Plaintiff during her deposition regarding her adequacy as a class representative, Defense Counsel asked Plaintiff's Counsel to produce the retention agreement to Defendant, and points out that Plaintiff's counsel neither agreed nor declined to produce the document. (Id.). Defendant argued that “…the scope of Plaintiff's counsel's representation of Plaintiff is relevant to the adequacy of Plaintiff's representation of the class…” so that production of the retention agreement should be compelled. (Id.).

         In her response to the First Motion to Compel, Plaintiff argued that the motion should be denied due to the failure of Defendant to comply with meet and confer requirements of Fed R. Civ. P. 37(A)(1) and Local Rule 7.1, and argued that production of the retainer agreement could not be compelled because the retainer agreement was not relevant to whether Plaintiff was an adequate class representative, and Defendant had not actually requested the document be produced. (Doc. 25). In its reply, Defendant argued that it had satisfied the requirements of ...


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